H.B. No. 1343
1-1 AN ACT
1-2 relating to inmate grievances and frivolous or malicious litigation
1-3 filed by inmates.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter B, Chapter 15, Civil Practice and
1-6 Remedies Code, is amended by adding Section 15.018 to read as
1-7 follows:
1-8 Sec. 15.018. INMATE LITIGATION. (a) Except as provided by
1-9 Section 15.014, an action that accrued while the plaintiff was
1-10 housed in a facility operated by or under contract with the Texas
1-11 Department of Criminal Justice shall be brought in the county in
1-12 which the facility is located.
1-13 (b) An action brought by two or more plaintiffs that accrued
1-14 while the plaintiffs were housed in a facility operated by or under
1-15 contract with the Texas Department of Criminal Justice shall be
1-16 brought in a county in which a facility that housed one of the
1-17 plaintiffs is located.
1-18 (c) This section does not apply to an action brought under
1-19 the Family Code.
1-20 SECTION 2. Subtitle A, Title 2, Civil Practice and Remedies
1-21 Code, is amended by adding Chapter 14 to read as follows:
1-22 CHAPTER 14. INMATE LITIGATION
1-23 Sec. 14.001. DEFINITIONS. In this chapter:
1-24 (1) "Claim" means a cause of action governed by this
2-1 chapter.
2-2 (2) "Department" means the Texas Department of
2-3 Criminal Justice.
2-4 (3) "Inmate" means a person housed in a secure
2-5 correctional facility.
2-6 (4) "Secure correctional facility" has the meaning
2-7 assigned by Section 1.07, Penal Code.
2-8 (5) "Trust account" means an inmate's trust account
2-9 administered by the department under Section 501.014, Government
2-10 Code, by a facility under contract with the department, or by a
2-11 jail.
2-12 (6) "Unsworn declaration" means a document executed in
2-13 accordance with Chapter 132.
2-14 Sec. 14.002. SCOPE OF CHAPTER. (a) This chapter applies
2-15 only to a suit brought by an inmate in a district, county, justice
2-16 of the peace, or small claims court in which an affidavit or
2-17 unsworn declaration of inability to pay costs is filed by the
2-18 inmate.
2-19 (b) This chapter does not apply to an action brought under
2-20 the Family Code.
2-21 Sec. 14.003. DISMISSAL OF CLAIM. (a) A court may dismiss a
2-22 claim, either before or after service of process, if the court
2-23 finds that:
2-24 (1) the allegation of poverty in the affidavit or
2-25 unsworn declaration is false;
2-26 (2) the claim is frivolous or malicious; or
2-27 (3) the inmate filed an affidavit or unsworn
3-1 declaration required by this chapter that the inmate knew was
3-2 false.
3-3 (b) In determining whether a claim is frivolous or
3-4 malicious, the court may consider whether:
3-5 (1) the claim's realistic chance of ultimate success
3-6 is slight;
3-7 (2) the claim has no arguable basis in law or in fact;
3-8 (3) it is clear that the party cannot prove facts in
3-9 support of the claim; or
3-10 (4) the claim is substantially similar to a previous
3-11 claim filed by the inmate because the claim arises from the same
3-12 operative facts.
3-13 (c) In determining whether Subsection (a) applies, the court
3-14 may hold a hearing. The hearing may be held before or after
3-15 service of process, and it may be held on motion of the court, a
3-16 party, or the clerk of the court.
3-17 (d) On the filing of a motion under Subsection (c), the
3-18 court shall suspend discovery relating to the claim pending the
3-19 hearing.
3-20 (e) A court that dismisses a claim brought by a person
3-21 housed in a facility operated by or under contract with the
3-22 department may notify the department of the dismissal and, on the
3-23 court's own motion or the motion of any party or the clerk of the
3-24 court, may advise the department that a mental health evaluation of
3-25 the inmate may be appropriate.
3-26 Sec. 14.004. AFFIDAVIT RELATING TO PREVIOUS FILINGS. (a)
3-27 An inmate who files an affidavit or unsworn declaration of
4-1 inability to pay costs shall file a separate affidavit or
4-2 declaration:
4-3 (1) identifying each suit, other than a suit under the
4-4 Family Code, previously brought by the person and in which the
4-5 person was not represented by an attorney, without regard to
4-6 whether the person was an inmate at the time the suit was brought;
4-7 and
4-8 (2) describing each suit that was previously brought
4-9 by:
4-10 (A) stating the operative facts for which relief
4-11 was sought;
4-12 (B) listing the case name, cause number, and the
4-13 court in which the suit was brought;
4-14 (C) identifying each party named in the suit;
4-15 and
4-16 (D) stating the result of the suit, including
4-17 whether the suit was dismissed as frivolous or malicious under
4-18 Section 13.001 or Section 14.003 or otherwise.
4-19 (b) If the affidavit or unsworn declaration filed under this
4-20 section states that a previous suit was dismissed as frivolous or
4-21 malicious, the affidavit or unsworn declaration must state the date
4-22 of the final order affirming the dismissal.
4-23 (c) The affidavit or unsworn declaration must be accompanied
4-24 by the certified copy of the trust account statement required by
4-25 Section 14.006(f).
4-26 Sec. 14.005. GRIEVANCE SYSTEM DECISION; EXHAUSTION OF
4-27 ADMINISTRATIVE REMEDIES. (a) An inmate who files a claim that is
5-1 subject to the grievance system established under Section 501.008,
5-2 Government Code, shall file with the court:
5-3 (1) an affidavit or unsworn declaration stating the
5-4 date that the grievance was filed and the date the written decision
5-5 described by Section 501.008(d), Government Code, was received by
5-6 the inmate; and
5-7 (2) a copy of the written decision from the grievance
5-8 system.
5-9 (b) A court shall dismiss a claim if the inmate fails to
5-10 file the claim before the 31st day after the date the inmate
5-11 receives the written decision from the grievance system.
5-12 (c) If a claim is filed before the grievance system
5-13 procedure is complete, the court shall stay the proceeding with
5-14 respect to the claim for a period not to exceed 180 days to permit
5-15 completion of the grievance system procedure.
5-16 Sec. 14.006. COURT FEES, COURT COSTS, OTHER COSTS. (a) A
5-17 court may order an inmate who has filed a claim to pay court fees,
5-18 court costs, and other costs in accordance with this section and
5-19 Section 14.007. The clerk of the court shall mail a copy of the
5-20 court's order and a certified bill of costs to the department or
5-21 jail, as appropriate.
5-22 (b) On the court's order, the inmate shall pay an amount
5-23 equal to the lesser of:
5-24 (1) 20 percent of the preceding six months' deposits
5-25 to the inmate's trust account; or
5-26 (2) the total amount of court fees and costs.
5-27 (c) In each month following the month in which payment is
6-1 made under Subsection (b), the inmate shall pay an amount equal to
6-2 the lesser of:
6-3 (1) 10 percent of that month's deposits to the trust
6-4 account; or
6-5 (2) the total amount of court fees and costs that
6-6 remain unpaid.
6-7 (d) Payments under Subsection (c) shall continue until the
6-8 total amount of court fees and costs are paid or until the inmate
6-9 is released from confinement.
6-10 (e) On receipt of a copy of an order issued under Subsection
6-11 (a), the department or jail shall withdraw money from the trust
6-12 account in accordance with Subsections (b), (c), and (d). The
6-13 department or jail shall hold the money in a separate account and
6-14 shall forward the money to the court clerk on the earlier of the
6-15 following dates:
6-16 (1) the date the total amount to be forwarded equals
6-17 the total amount of court fees and costs that remains unpaid; or
6-18 (2) the date the inmate is released.
6-19 (f) The inmate shall file a certified copy of the inmate's
6-20 trust account statement with the court. The statement must reflect
6-21 the balance of the account at the time the claim is filed and
6-22 activity in the account during the six months preceding the date on
6-23 which the claim is filed. The court may request the department or
6-24 jail to furnish the information required under this subsection.
6-25 (g) An inmate may authorize payment in addition to that
6-26 required by this section.
6-27 (h) The court may dismiss a claim if the inmate fails to pay
7-1 fees and costs assessed under this section.
7-2 (i) An inmate may not avoid the fees and costs assessed
7-3 under this section by nonsuiting a party or by voluntarily
7-4 dismissing the action.
7-5 Sec. 14.007. OTHER COSTS. (a) An order of a court under
7-6 Section 14.006(a) shall include the costs described by Subsection
7-7 (b) if the court finds that:
7-8 (1) the inmate has previously filed an action in a
7-9 district, county, justice of the peace, or small claims court; and
7-10 (2) a final order has been issued that affirms that
7-11 the action was dismissed as frivolous or malicious under Section
7-12 13.001 or Section 14.003 or otherwise.
7-13 (b) Costs under Subsection (a) shall include, as costs of
7-14 court, expenses incurred by the court or by the department, jail,
7-15 or private facility operator, in connection with the claim and not
7-16 otherwise charged to the inmate under Section 14.006, including:
7-17 (1) expenses of service of process;
7-18 (2) postage; and
7-19 (3) transportation, housing, or medical care incurred
7-20 in connection with the appearance of the inmate in the court for
7-21 any proceeding.
7-22 Sec. 14.008. HEARING. (a) The court may hold a hearing
7-23 under this chapter at a jail or a facility operated by or under
7-24 contract with the department or may conduct the hearing with video
7-25 communications technology that permits the court to see and hear
7-26 the inmate and that permits the inmate to see and hear the court
7-27 and any other witness.
8-1 (b) A hearing conducted under this section by video
8-2 communications technology shall be recorded on videotape. The
8-3 recording is sufficient to serve as a permanent record of the
8-4 hearing.
8-5 Sec. 14.009. SUBMISSION OF EVIDENCE. (a) The court may
8-6 request a person with an admissible document or admissible
8-7 testimony relevant to the subject matter of the hearing to submit a
8-8 copy of the document or written statement stating the substance of
8-9 the testimony.
8-10 (b) A written statement submitted under this section must be
8-11 made under oath or made as an unsworn declaration under Section
8-12 132.001.
8-13 (c) A copy of a document submitted under this section must
8-14 be accompanied by a certification executed under oath by an
8-15 appropriate custodian of the record stating that the copy is
8-16 correct and any other matter relating to the admissibility of the
8-17 document that the court requires.
8-18 (d) A person submitting a written statement or document
8-19 under this section is not required to appear at the hearing.
8-20 (e) The court shall require that the inmate be provided with
8-21 a copy of each written statement or document not later than 14 days
8-22 before the date on which the hearing is to begin.
8-23 Sec. 14.010. DISMISSAL OF CLAIM. (a) The court may enter
8-24 an order dismissing the entire claim or a portion of the claim
8-25 under this chapter.
8-26 (b) If a portion of the claim is dismissed, the court shall
8-27 designate the issues and defendants on which the claim may proceed,
9-1 subject to Sections 14.006 and 14.007.
9-2 (c) An order under this section is not subject to
9-3 interlocutory appeal by the inmate.
9-4 Sec. 14.011. EFFECT ON OTHER CLAIMS. (a) Except as
9-5 provided by Subsection (b), on receipt of an order assessing fees
9-6 and costs under Section 14.006 that indicates that the court made
9-7 the finding described by Section 14.007(a), a clerk of a court may
9-8 not accept for filing another claim by the inmate until the fees
9-9 and costs assessed under Section 14.006 are paid.
9-10 (b) A court may allow an inmate who has not paid the fees
9-11 and costs assessed against the inmate to file a claim for
9-12 injunctive relief seeking to enjoin an act or failure to act that
9-13 creates a substantial threat of irreparable injury or serious
9-14 physical harm to the inmate.
9-15 Sec. 14.012. QUESTIONNAIRE. To implement this chapter, a
9-16 court may develop, for use in that court, a questionnaire to be
9-17 filed by the inmate.
9-18 Sec. 14.013. REVIEW AND RECOMMENDATION BY MAGISTRATES. (a)
9-19 The supreme court shall, by rule, adopt a system under which a
9-20 court may refer a suit governed by this chapter to a magistrate for
9-21 review and recommendation.
9-22 (b) The system adopted under Subsection (a) may be funded
9-23 from money appropriated to the supreme court or from money received
9-24 by the supreme court through interagency contract or contracts.
9-25 (c) For the purposes of Section 14.014, the adoption of a
9-26 system by rule under Subsection (a) does not constitute a
9-27 modification or repeal of a provision of this chapter.
10-1 Sec. 14.014. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE.
10-2 Notwithstanding Section 22.004, Government Code, this chapter may
10-3 not be modified or repealed by a rule adopted by the supreme court.
10-4 SECTION 3. Chapter 13, Civil Practice and Remedies Code, is
10-5 amended by adding Section 13.004 to read as follows:
10-6 Sec. 13.004. INAPPLICABILITY TO CERTAIN CLAIMS. This
10-7 chapter does not apply to a claim governed by Chapter 14.
10-8 SECTION 4. Chapter 106, Civil Practice and Remedies Code, is
10-9 amended by adding Section 106.004 to read as follows:
10-10 Sec. 106.004. INAPPLICABILITY TO CERTAIN CLAIMS. This
10-11 chapter does not authorize a claim for preventive relief against
10-12 the Texas Department of Criminal Justice, an employee of the
10-13 department, or any other agency, agent, employee, or officer of
10-14 this state if:
10-15 (1) the claim is brought by a person housed in a
10-16 facility operated by or under contract with the department; and
10-17 (2) the claim accrued while the person was housed in
10-18 the facility.
10-19 SECTION 5. Chapter 498, Government Code, is amended by
10-20 adding Section 498.0045 to read as follows:
10-21 Sec. 498.0045. FORFEITURE OF GOOD CONDUCT TIME: FRIVOLOUS
10-22 LAWSUITS. (a) In this section, "final order" means a certified
10-23 copy of a final order of a state or federal court that dismisses as
10-24 frivolous or malicious a lawsuit brought by an inmate while the
10-25 inmate was in the custody of the department.
10-26 (b) On receipt of a final order, the department shall
10-27 forfeit:
11-1 (1) 60 days of an inmate's accrued good conduct time,
11-2 if the department has previously received one final order;
11-3 (2) 120 days of an inmate's accrued good conduct time,
11-4 if the department has previously received two final orders; or
11-5 (3) 180 days of an inmate's accrued good conduct time,
11-6 if the department has previously received three or more final
11-7 orders.
11-8 (c) The department may not restore good conduct time
11-9 forfeited under this section.
11-10 SECTION 6. Section 501.008, Government Code, is amended to
11-11 read as follows:
11-12 Sec. 501.008. INMATE GRIEVANCE SYSTEM <PROCEDURE>. (a) The
11-13 department <institutional division> shall develop and maintain a
11-14 system for the resolution of <inmate> grievances by inmates housed
11-15 in facilities operated by the department or under contract with the
11-16 department that qualifies for certification under 42 U.S.C. Section
11-17 1997e and the department shall obtain and maintain certification
11-18 under that section. A remedy provided by the grievance system is
11-19 the exclusive administrative remedy available to an inmate for a
11-20 claim for relief against the department that arises while the
11-21 inmate is housed in a facility operated by the department or under
11-22 contract with the department, other than a remedy provided by writ
11-23 of habeas corpus challenging the validity of an action occurring
11-24 before the delivery of the inmate to the department or to a
11-25 facility operated under contract with the department.
11-26 (b) The grievance system must provide procedures:
11-27 (1) for an inmate to identify evidence to substantiate
12-1 the inmate's claim; and
12-2 (2) for an inmate to receive all formal written
12-3 responses to the inmate's grievance.
12-4 (c) A report, investigation, or supporting document prepared
12-5 by the department in response to an inmate grievance is considered
12-6 to have been prepared in anticipation of litigation and is
12-7 confidential, privileged, and not subject to discovery by the
12-8 inmate in a claim arising out of the same operative facts as are
12-9 alleged in the grievance.
12-10 (d) An inmate may not file a claim in state court regarding
12-11 operative facts for which the grievance system provides the
12-12 exclusive administrative remedy until:
12-13 (1) the inmate receives a written decision issued by
12-14 the highest authority provided for in the grievance system; or
12-15 (2) if the inmate has not received a written decision
12-16 described by Subdivision (1), the 180th day after the date the
12-17 grievance is filed.
12-18 (e) The limitations period applicable to a claim arising out
12-19 of the same operative facts as a claim for which the grievance
12-20 system provides the exclusive remedy:
12-21 (1) is suspended on the filing of the grievance; and
12-22 (2) remains suspended until the earlier of the
12-23 following dates:
12-24 (A) the 180th day after the date the grievance
12-25 is filed; or
12-26 (B) the date the inmate receives the written
12-27 decision described by Subsection (d)(1).
13-1 (f) This section does not affect any immunity from a claim
13-2 for damages that otherwise exists for the state, the department, or
13-3 an employee of the department.
13-4 SECTION 7. Subchapter A, Chapter 501, Government Code, is
13-5 amended by adding Section 501.019 to read as follows:
13-6 Sec. 501.019. COST OF CONFINEMENT AS CLAIM; SETOFF. (a)
13-7 The state may deduct from any monetary obligation owed to an
13-8 incarcerated person:
13-9 (1) the cost of incarceration, if a cost of
13-10 incarceration for the person can be computed; and
13-11 (2) any amount assessed against the person under
13-12 Section 14.006, Civil Practice and Remedies Code, that remains
13-13 unpaid at the time the monetary obligation is to be paid.
13-14 (b) In a case in which a person may be indemnified under
13-15 Chapter 104, Civil Practice and Remedies Code, and that arises from
13-16 a claim made by a person for whom a cost of incarceration can be
13-17 computed, the court shall reduce the amount recoverable by the
13-18 claimant by the amount of the cost of incarceration.
13-19 (c) The annual cost of incarceration of a person shall be
13-20 computed using the average cost per day for imprisonment calculated
13-21 by the Criminal Justice Policy Council.
13-22 (d) In making a deduction under Subsection (a) or in
13-23 reducing an award under Subsection (b), the department or the court
13-24 shall credit or debit a prorated portion of the cost of
13-25 incarceration for a person incarcerated for 365 days or less in a
13-26 year. The number of days of incarceration in a year includes time
13-27 served before conviction.
14-1 (e) This section applies to a monetary obligation arising
14-2 from a judgment against the state, an agency of the state, or an
14-3 officer or employee of the state or an agency of the state, only
14-4 if:
14-5 (1) the judgment awards damages for property damage or
14-6 bodily injury resulting from a negligent act or omission, including
14-7 an act or omission described by Section 101.021(1), Civil Practice
14-8 and Remedies Code; and
14-9 (2) there is not a finding by the court of a violation
14-10 of the constitution of this state or the United States.
14-11 SECTION 8. Section 30.006, Civil Practice and Remedies Code,
14-12 is repealed.
14-13 SECTION 9. (a) The Texas Department of Criminal Justice
14-14 shall provide notice to all persons housed in facilities operated
14-15 by or under contract with the department of the provisions of this
14-16 Act.
14-17 (b) In providing notice under this section, the Texas
14-18 Department of Criminal Justice shall:
14-19 (1) include notice of the provisions of this Act in a
14-20 newspaper or similar publication published for persons housed in
14-21 facilities operated by or under contract with the department;
14-22 (2) post notice of the provisions of this Act in each
14-23 law library maintained by the department or under contract with the
14-24 department in a facility in which persons are housed; and
14-25 (3) ensure that adequate notice is provided to persons
14-26 who are not housed in the general population of inmates.
14-27 SECTION 10. (a) This Act applies only to a cause of action
15-1 that accrues on or after the effective date of this Act. An action
15-2 that accrued before the effective date of this Act is governed by
15-3 the law applicable to the action as it existed immediately before
15-4 the effective date of this Act, and that law is continued in effect
15-5 for that purpose.
15-6 (b) Section 498.0045, Government Code, as added by this Act,
15-7 applies only to a forfeiture of good conduct time based on the
15-8 filing in court of a lawsuit on or after the effective date of this
15-9 Act.
15-10 (c) Section 501.008, Government Code, as amended by this
15-11 Act, applies only to an inmate grievance filed on or after the
15-12 effective date of this Act. An inmate grievance filed before the
15-13 effective date is governed by the law as it existed immediately
15-14 before the effective date of this Act, and that law is continued in
15-15 effect for that purpose.
15-16 SECTION 11. The importance of this legislation and the
15-17 crowded condition of the calendars in both houses create an
15-18 emergency and an imperative public necessity that the
15-19 constitutional rule requiring bills to be read on three several
15-20 days in each house be suspended, and this rule is hereby suspended,
15-21 and that this Act take effect and be in force from and after its
15-22 passage, and it is so enacted.